Jealous Makombe v The State

The appellant was charged and convicted of assaulting his wife by striking her on the mouth with open hands in violation of s 4(1)(a) of the Domestic Violence Act [Cap 5:16]. He was sentenced to pay a fine of US$300.00 or in default of payment to undergo 8 months imprisonment. In addition, 8 months imprisonment (the whole of which was suspended on conditions) was imposed.

• Whether there was a proper relationship between the fine imposed and the alternative period of imprisonment in default of payment
• What is the appropriate methodology for computing alternative periods of incarceration when a fine is imposed

The first part of the sentence was set aside and substituted with the following: "US$300-00 or in default of payment 2 months imprisonment." The remainder of the sentence (8 months suspended on conditions) was not disturbed.

When imposing a fine with an alternative period of imprisonment in default of payment, there must be a proper relationship and proportionality between the fine imposed and the alternative period of incarceration. The court must seek guidance from the convicted person as to how long it is likely to take to raise the fine, which involves canvassing issues such as source of income (if not formally employed) or monthly earnings (if employed). Only after such information has been sufficiently gathered can the court exercise its wide discretion in imposing the alternative period of imprisonment. The alternative period cannot be an arbitrary number of months determined without proper inquiry.

The court noted that the approach of imposing 8 months alternative imprisonment appeared to be "clear guess work" and commented that "it cannot be any number of months granted in the air." The court emphasized that the approach adopted in the original sentence did not accord with "real and substantial justice." These observations reinforce the need for courts to exercise care and conduct proper inquiries when imposing sentences involving fines with alternative imprisonment.

This case establishes important principles for sentencing in Zimbabwean criminal law, particularly regarding the methodology for determining alternative periods of imprisonment when fines are imposed. It emphasizes the need for proportionality and a rational relationship between fines and default imprisonment periods, and requires courts to conduct proper inquiries into the convicted person's financial circumstances before determining the alternative period of incarceration. The case serves as guidance to magistrates and lower courts on proper sentencing procedures.